UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 16-1853 (TJK) TORRAIN KELLY, Plaintiff , v. RICHARD WRIGHT PUBLIC CHARTER SCHOOL et al. , Defendants

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MEMORANDUM OPINION AND ORDER Defendant Richard Wright Public Charter School is a charter sc hool operating in the District of Columbia, Defendant Marco Clark is the school’s CEO , and Plaintiff Torrain Kelly is a former teacher at the school. Both Defendants answered Plain tiff’s complaint and moved for summary judgment without asserting as a defense the statutory i mmunity that is conferred on charter schools and their employ ees under District of Columbia law. Six months after filing their motion for summary judgment, Defendants moved to dismiss on the basis of this statutory immunity. See ECF No. 40 (“Mot.”). For the r easons explained below, Defenda nts’ Motion to Dismiss will be denied. The statutory immunity they cite is anaffirmative defense that they failed to plead in their answers, and therefore is forfeited. This immunity does not, as Defendants argue, divest this Court of subject-matter jurisdict ion. Background On September 16, 2016, Plaintiff filed suit against Defendants. ECF No. 1 (“Compl.”). He asserts claims under the federal Family and Medical Leave Ac t, 29 U.S.C. § 2601 et seq. ; the District of Columbia Family and Medical Leave Act (“DCFMLA”), D .C. Code §§ 32-503, 32-2 507; and the District of Columbia Human Rights Act (“DCHRA”), D .C. Code §§ 2-1401.01 et
seq . Compl. ¶¶ 56-62. On October 13, 2016, both Defendants filed answers to Plaintiff ’s complaint. ECF Nos. 5-6. Neither answer asserted an affirmative defense based on a ny kind of immunity. ECF No. 5 at 8-10; ECF No. 6 at 8-10. After the close of discovery, on J une 9, 2017, Defendants moved for summary judgment. ECF No. 20. Then, on December 12, 2017, more than s ix months later, Defenda nts moved to dismiss on the ground that they are statuto rily immune from civil liabi lity. See Mot.; ECF No. 45 (“Opp.”); ECF No. 54 (“Reply”). I n their Motion, Defendants ar gue that the District of Columbia School Reform Act of 1995 (“School Reform Act”), Pub. L. No. 104-134, § 101(b) tit. II, 110 Stat. 1321, 1321-107 to 1321-156 (1996) (codified as am ended at D.C. Code § 38- 1800.02 et seq. ) immunizes them from Plaintiff’s DCFMLA and DCHRA claims. Rep ly at 2-3. One of its provisions, D.C. C ode. § 38-1802.04(c)(17), provides as follows: (17) Immunity from civil liability . — (A) In general . — A public charter school, and its incorporators, Board of Trustees, officers, employees, a nd volunteers, shall be immune from civil liability, both personally and pr ofessionally, for any act or o mission within the scope of their official duties unless the act or omission: (i) Constitutes gross negligence; (ii) Constitutes an intentional tort; or (iii) Is criminal in nature. (B) Common law immunity preserved . — Subparagraph (A) of this paragraph shall not be construed to abr ogate any immunity under common la w of a person described in such subparagraph. Plaintiff does not appear to dis pute that this provision appli es to his claims arising under District of Columbia law. Inst ead, he contends that Defendants forfeited this defense because they did not assert it in a r esponsive pleading. Opp. at 5-6 ( citing Fed. R. Civ. P. 12(h)(1)). Defendants counter that the immunity afforded them under the st atute goes to the Court’s3 subject-matter jurisdiction, which means it cannot be forfeited . Reply at 3-4 (citing Fed. R. Civ. P. 12(h)(3)). Legal Standard Federal Rule of Civil Procedure 8(c) provides that “[i]n respon ding to a pleading, a party must affirmatively state any avoidance or affirmative defense . . . .” Fed. R. Civ. P. 8(c). “The D.C. Circuit has made clear that ‘Rule 8(c) means what it says: a party must first raise its affirmative defenses in a responsive pleading before it can rai se them in a dispositive motion.’” Arias v. DynCorp , No. 01-cv-1908, 2016 WL 6496214, at *4 (D.D.C. Nov. 2, 2016) (emphasis omitted) (citing Harris v. Sec’y, U.S. Dep’t of Veterans Affairs , 126 F.3d 339, 345 (D.C. Cir. 1997)). On the other hand, if a defense implicates the Court’s subject-matter jurisdiction, Federal Rule of Civil Procedure 12(h)(3) provides that a court “must dismiss” an action if it “determines at any time that it lacks subject-matter jurisdiction.” Fed. R. Civ. P. 1 2(h)(3) (emphasis added). This reflects the fundamental principle that “[s]ubject-matter jurisdiction cannot be forfeited or waived . . . .” Ashcroft v. Iqbal , 556 U.S. 662, 671 (2009). In a diversity case, “[d]etermining whether a contention is an affirmative defense for rule 8(c) purposes is a ma tter of state law.” Troxler v. Owens-Illinois, Inc. , 717 F.2d 530, 532 (11th Cir. 1983); see also Roskam Baking Co. v. Lanham Mach. Co. , 288 F.3d 895, 901 (6th Cir. 2002) (“Cases from other circuits make clear that the district court was correct in this case to look to Michigan state law to determine whether or not the [statute of repose] is an affirmative defense for the purposes of Rule 8(c).”) . But “federal law dictates ‘the manner and time in which4 defenses are raised and when [forfeiture] occurs.’” Lee v. Universal Underwriters Ins. Co. , 642 F. App’x 969, 973-74 (11th Cir. 2016) (quoting Troxler , 717 F.2d at 532). 1 Analysis As a federal court applying Dist rict of Columbia law, this Court’s duty is to predict, as best it can, how the District of Columbia Court of Appeals woul d decide the issue upon which Defendants’ Motion turns: whether the statutory immunity afford ed by D.C. Code § 38- 1802.04(c)(17) is an affirmative defense. See Siegel v. Mazda Motor Corp. , 835 F.2d 1475, 1476-77 (D.C. Cir. 1987); Forras v. Rauf , 39 F. Supp. 3d 45, 53 (D.D.C. 2014). If it is an affirmative defense, then Rule 8(c) requires it to be pleaded—o therwise, it is forfeited. 2 The Court has not located any cases applying District of Columbia l aw that address this specific question, or the broader issue of whether, as a general matter, statutory immunity is an affirmative defense. The vast majority of federal courts to consider this question, however, have held that state-law statutory immunity is an affirmative defense that def endants must plead. See, e.g. , Dakshinamoorthy v. Nat’l Ass’n of Boards of Pharmacy , 475 F. App’x 548, 550 (6th Cir. 2012)

1 “The terms waiver and forfeiture—though often used interchange ably by jurists and litigants— are not synonymous. [F]orfeiture i s the failure to make the ti mely assertion of a right[;] waiver is the intentional relinquishment or abandonment of a known right. ” Hamer v. Neighborhood Hous. Servs. of Chi. , 138 S. Ct. 13, 17 n.1 (2017) (al terations in original) (quoti ng United States v. Olano , 507 U.S. 725, 733 (1993)) (internal quotation marks omitted). At issue here is whether Defendants forfeited a statutory-immunity defense because of th eir “failure to make the timely assertion of a right.” Id.

2 Plaintiff appears to suggest that Defendants forfeited their s tatutory immunity defense because they did not contest personal jurisdiction. Opp . at 5-6 (citin g Fed. R. Civ. P. 12(h)(1)). Personal jurisdiction can, of c ourse, be forfeited. Sickle v. Torres Advanced Enter. Sols., LLC , 884 F.3d 338, 344 (D.C. Cir. 2018). But statutory immunity—which goes t o whether Defendants can be held liable—is a different defen se than personal jurisdiction, which goes to whether the Court can exercise jurisdiction over Defendants. Thus, it is Rule 8( c), not Rule 12(h)(1), that controls here.5 (statutory immunity for reports by health-professional organiza tions); Troxler , 717 F.2d at 533 (statutory immunity for employers under workers’ compensation s tatute); Cox v. Smith ( In re Cent. Ill, Energy Coop. ), 561 B.R. 699, 713 (Bankr. C.D. Ill. 2016) (statutory immunit y for directors of agricu ltural cooperative); Niebur v. Town of Cicero , 212 F. Supp. 2d 790, 819-20 (N.D. Ill. 2002) (statutory immun ity for public officials perfo rming discretionary functions); Roush v. Stone , No. 2:08-cv-141, 2010 WL 3037003, a t *2 (S.D. Ohio Aug. 2, 20 10) (statutory immunity for state employees); Shirsat v. Mut. Pharm. Co. , No. 93-cv-3202, 1996 WL 606297, at *3 (E.D. Pa. Oct. 22, 1996) (imm unity under workers’ compens ation statute); see also In re Stock Exchs. Options Trading Antitrust Litig. , 317 F.3d 134, 151 (2d Cir. 2003) (“Affirmative defenses and avoidances other th an those specifically reference d [in Rule 8(c)] have been found to include . . . statutory imm unity . . . .” (first alteration in original) (quoting 2 Moore’s Federal Practice § 8.07[5] (3d ed. 1999)). A nd in many of these cases, the court held that defendants had, in fact, forfeited this affirmative defense. Troxler , 717 F.2d at 533; Niebur , 212 F. Supp. 2d at 819-20; Roush , 2010 WL 3037003, at *3-4. Consistent with these authoritie s, the Court concludes that th e District of Columbia Court of Appeals would likely hold that the statutory immunity at iss ue here is an affirmative defense. As such, defendants in federal c ourt “must first raise . . . [i t] in a responsiv e pleading before [they] can raise [it] in a dispositive motion.” Harris , 126 F.3d at 345. Defendants did not raise statutory immunity as an affirmative defense. See ECF No. 5 at 8-10; ECF No. 6 at 8-10. And they have not sought leave to a mend their answers. Thus, they have forfeited this affirmative defense. See, e.g. , Gilbert v. Napolitano , 670 F.3d 258, 260-61 (D.C. Cir. 2012) (“[Defendant] points out that it promptly assert ed the defense in its motion to dismiss, but this misses the point: as we have explained, ‘a party mus t first raise its affirmative defenses in a responsive pleading6 before it can raise them in a dispositive motion.’ (quoting Harris , 126 F.3d at 345)); Butler v. White , 67 F. Supp. 3d 59, 67 (D.D.C. 2014) (“If defendant had argued the affirmative defenses in its dispositive motion but neve r filed a motion to amend, Harris would certainly call for the forfeiture of defendant’s affirmative defenses.”); Nurriddin v. Goldin , 382 F. Supp. 2d 79, 91 (D.D.C. 2005), aff’d , 222 F. App’x 5 (D.C. Cir. 2007). Defendants suggest in their re ply brief that the School ReformAct confers “absolute statutory immunity” which “cannot be [forfeited].” Reply at 4. But the only case they cite to support this proposition, Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee , 456 U.S. 694 (1982), merely stands f or the unremarkable proposi tion that subj ect-matter jurisdiction cannot be forfe ited—a point no one contests. See id. at 702. The case says nothing about whether “absolute statuto ry immunity” goes to a court’s s ubject-matter jurisdiction. Moreover, even if it did, the sta tute at issue here does not co nfer “absolute” im munity. It applies only to “any act or omission within the scope of [public charte r schools’ or their employees’] official duties.” D.C. Code. § 38- 1802.04(c)(17)(A). It also leaves public charter schools and their employees open to claims based on gross negligence, an in tentional tort, or criminal activity. Id. For these reasons, the immun ity provided by the School Reform Act is far from “absolute”—rather, it is a car efully limited immunity. Thus, l ike other forms of statutory immunity, it is an affirmative defense that can be forfeited. Dakshinamoorthy , 475 F. App’x at 550; Troxler , 717 F.2d at 533. In sum, the Court concludes that the limited statutory immunit y provided by the School Reform Act is an affirmative defe nse that Defendants failed to plead in their answers, ECF Nos. 5-6, and thereby forfeited. Harris , 126 F.3d at 354.7 Conclusion and Order For all of the above reasons, Def endants’ Motion to Dismiss, EC F No. 40, is DENIED

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SO ORDERED. /s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: July 9, 2018